At 12:19 AM 3/1/99 -0500, you wrote:
Um, when the Ninth Circuit Court of Appeals in which I practice
tells me that trademarks are not property, I listen, and I don't
much give a rip about what academia says.
Bill Lovell
>Bill
>You make important distinctions between the type of property right
>associated with
>patents, copyrights, and trademarks. However, from the standpoint of law and
>economics theory, and from the standpoint of ordinary usage, "ownership"
>means the
>following things:
>-- the right to use
>-- the right to exclude others from use
>-- the right to transfer
>
>All of those factors apply to trademarks. It is very important to stress, as
>you
>do, that the raison d'etre for trademark ownership is the right of the
>consumer not
>to be confused or deceived, and not some intrinsic claim of the mark owner
>(although in the case law I have read I often see great emphasis placed on
>the mark
>holder's investments in the brand). But I do not see what is accomplished by
>saying
>that the mark is not "owned" when all of the rigorously defined features of
>ownership are present.
>
>--MM
>
>Bill Lovell wrote:
>
>> Anything that can be "owned" is property. A trademark registration is more
>> like a contract with the world: "for the opportunity to prevent others from
>> using this mark, I promise to police it and make sure that no one else
>uses the
>> same mark on the same goods and services, which could cause confusion
>amongst all
>> you
>> folk." Similarly, a patent says that for the opportunity to prevent others
>> from making, using or selling this technology during my little place in
>the sun,
>> in this
>> patent application you will find a complete description of the invention,
>so that
>>
>> those "of ordinary skill in the art can make and use the same," i.e.,
>after the
>> patent term terminates and the technology falls into the public domain. A
>> distinct
>> difference between the two is that patents, like copyrights, have
>Constitutional
>> support; a trademark does not. Patents and copyrights are property
>because the
>> owners thereof have created something new in the world; trademarks AS SUCH
>are
>> not, although a neat new logo or whatever might also have copyright
>protection,
>> but
>> it would the copyright, not the trademark, that has characteristics of
>ownership.
>>
>> The trademark imposes duties of performance that neither patents nor
>copyrights
>> impose, and are only acquired (this is all U. S. law, of course) by ACTUAL
>USE
>> of the mark in commerce; the trademark registration itself neither adds to
>nor
>> detracts from whatever trademark "rights" might already exist under the
>common
>> law, except in terms of evidence. Those duties also include that of
>> maintaining the quality of the goods sold under the mark: the consumer has a
>> right to get
>> what was expected when the purchase was made on the basis of the mark.
>>
>> Paul Revere's stamp was on all of his silver works, and the "guild"
tradition
>> extends back to England and even further back from there to Italy. The mark
>> is not owned, but one has a hard earned "license" to use it.
>>
>> Bill Lovell
>
>
>
>--
>M I L T O N M U E L L E R S Y R A C U S E U N I V E R S I T Y
>>>>>>>>>>>>>>>>>>>>>>>>>>>><<<<<<<<<<<<<<<<<<<<<<
>School of Information Studies http://istweb.syr.edu/~mueller/
>
